Norris Dajon Miller v. State A Claim Warden

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO THIRTY-DAY DEADLINE

(Doc. 1)

Screening Order

I. Screening Requirement and Standard

Plaintiff Norris Dajon Miller, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 23, 2010. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted."

To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Plaintiff's Claims

A. Allegations

Plaintiff, who is currently incarcerated at Kern Valley State Prison, brings this action against prison officials based on events which occurred at Pleasant Valley State Prison. On January 8, 2008, a fight occurred at the prison and although Plaintiff alleges that he was not involved, he was sprayed in the face with two cans of mace. Plaintiff, who has asthma, tried to cover his face to protect it and was then hit twice on the right wrist with a police baton. Plaintiff was handcuffed tightly, picked up by three of the four officers, and thrown out of the building. Plaintiff, who became airborne in the toss, landed on the hard concrete, sustaining a broken right wrist and a right carpal navicular fracture.

Plaintiff alleges that Defendant Lewis, a physician at a clinic in Tehachapi, never fixed his right hand. Plaintiff's hand has been broken for two years and he has marginal sclerosis, possibly indicating the failure to heal. Further, Plaintiff, who is right-handed, cannot bend his right hand up or down.

Plaintiff alleges claims for the use of excessive physical force and the denial of appropriate medical care, in violation of the Eighth Amendment of the United States Constitution. Plaintiff seeks damages and medical care as relief, and he names the Doe Warden of Pleasant Valley State Prison; Correctional Officers S. ...

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